Citation: Regina (C'Wealth) v Baladjam & Ors [No 14] [2008] NSWSC 1438
Court: Supreme Court of New South Wales
Date: 2 May 2008
Judge(s): Whealy J
Background
This decision arose in the course of a large criminal trial involving nine accused charged with serious Commonwealth offences. The specific application was brought on behalf of one accused, who sought to exclude identification evidence under s 138 of the Evidence Act 1995 (NSW).
The evidence in question came from a witness named Yong Ki Kwon, who had attended a Lashkar-e-Taiba (LeT) training camp in Pakistan in late 2001. Kwon identified the accused as a fellow trainee at that camp, known at the time as "Abu Asad." The identification was first made during an interview conducted by an Australian Security Intelligence Organisation (ASIO) agent, Mr Springer, in the context of intelligence gathering rather than criminal investigation.
The defence argued that the identification process was flawed. In particular, no proper photo board was prepared showing individuals of similar description, and no steps were taken to ensure the fairness of the identification procedure. The question for the court was whether this process constituted an impropriety or breach of Australian law under s 138, and if so, whether the evidence should nonetheless be admitted.
Legal Issues
- Whether the ASIO-conducted identification process constituted an "impropriety" or a contravention of Australian law within the meaning of s 138(1) of the Evidence Act 1995
- Whether s 3ZO of the Crimes Act 1914 (Cth), or ss 114 and 115 of the Evidence Act, applied to govern the identification process (it was accepted by the defence that they did not)
- Whether the relationship between ASIO's intelligence-gathering function and the AFP's law enforcement role was relevant to the assessment of any alleged impropriety
- If impropriety or illegality were found, whether the desirability of admitting the evidence outweighed the undesirability of doing so, applying the balancing exercise in s 138(3)
Decision
Whealy J rejected the application. The court found that s 138 had not been "triggered" because there was no impropriety, no contravention of Australian law, and the evidence was not obtained in consequence of either. The analysis turned on whether the conduct of the ASIO agent fell clearly short of the minimum standards expected of those exercising law enforcement powers, as required by the test in Robinson v Woolworths Limited (2005) 64 NSWLR 612. The court concluded that it did not.
Central to the reasoning was the character of the ASIO agent's role at the time of the identification. Mr Springer understood himself to be engaged in intelligence gathering, not in building a prosecution brief. He had no knowledge of, or obligation to apply, proper police identification procedures. The court found that any failure to use a proper photo board reflected, at worst, naivety or carelessness, and was neither deliberate nor reckless.
Whealy J also considered the argument that the entire process was, in substance, part of a criminal investigation rather than pure intelligence gathering. This was rejected. The court found that ASIO and the AFP were not jointly engaged in an investigative process at the relevant time, and there was no basis to characterise the ASIO agent's conduct as part of a law enforcement operation subject to police identification standards.
In the alternative, should impropriety have been found, the court conducted the s 138(3) balancing exercise and concluded the evidence should still be admitted. The identification evidence carried reasonably high probative value, went directly to facts in issue, and related to a serious offence. Any possible impropriety was minor. Any residual concerns about the reliability of the identification process could be addressed through appropriate jury directions.
Orders Made
- The application to exclude the identification evidence of the accused under s 138 of the Evidence Act 1995 was refused.
Key Takeaways
- Under s 138 of the Evidence Act 1995, the accused bears the onus of establishing the impropriety or illegality that would engage the court's discretion; once established, the onus shifts to the Crown to justify admission.
- "Impropriety" for the purposes of s 138 requires conduct that is clearly or quite inconsistent with the minimum standards expected of those entrusted with law enforcement powers; mere carelessness or naivety does not meet that threshold.
- Where an identification is conducted by an ASIO officer acting in an intelligence-gathering capacity, rather than as part of a joint criminal investigation with the AFP, the failure to follow formal police identification procedures does not necessarily constitute an impropriety.
- Even where s 138 is engaged, the s 138(3) balancing exercise requires the court to weigh factors including the probative value of the evidence, its importance to the proceedings, and the seriousness of the offence against any undesirability in the manner of its obtaining.
- Weaknesses in a photographic identification process, and concerns about witness reliability, are matters appropriately addressed by trial directions rather than exclusion of the evidence in all cases.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 114, 115, 137, 138
- Crimes Act 1914 (Cth), s 3ZO
Cases
- Robinson v Woolworths Limited (2005) 64 NSWLR 612
- DPP v AM (2006) 161 A Crim R 219
- R v Coulstock (1998) 99 A Crim R 143
- R v Cornwell (2003) 57 NSWLR 82
- R v Coombe (NSWCCA, 24 April 1997, unreported)
- R v Alexander (1991) 45 CLR 395
- R v Petroulias (No 8) [2007] NSWSC 82
- R v Petroulias (No 9) [2007] NSWSC 84
- R v Baladjam & Ors [No 7] (unreported, 15 April 2008)